High Court of KeralaSingle Judge2015-08-10Conviction affirmed; sentence modified to impri...

Venad Kuries and others v. M.Y. Sajith, M. Ayyappan Nair, T. V. Reji, State of Kerala

Case / Petition Number:Crl.Rev.Pet.No.69 of 2007 (C)

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2015-08-10
Court Decision / Holding: The conviction passed by the appellate Court is confirmed for the accused, and the sentence is modified: the petitioners are to undergo imprisonment till the rising of the Court and to pay compensation of ₹30,000, in default of which simple imprisonment for three months. The Criminal Revision Petition is disposed of as above.
Final Disposition: Conviction affirmed; sentence modified to imprisonment till rising of the Court and payment of Rs. 30,000 as compensation, with default imprisonment for three months; petition disposed of accordingly.

Parties to the Case

Appellants / Petitioners

Venad Kuries
R. Sankar
K. Ramesan
M. Nazir

Respondents

M. Y. Sajith
M. Ayyappan Nair
T. V. Reji
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri S. Sanal Kumar
• Smt. Bhavana Velayudhan

Counsels for Respondents

• Public Prosecutor Sareena George
• Sri K. Mohan
• Sri S. Soman

Case Synopsis & Summary

This is a Kerala High Court criminal revision petition (Crl.R.P. No. 69 of 2007) challenging the judgment in Crl.Appeal No.526/2003 of the Additional Sessions Judge, Fast Track Court-II, Alappuzha, which convicted the accused in C.C. No.514/2000 under Section 138 of the Negotiable Instruments Act. The petitioners, a partnership firm (Venad Kuries) and three partners, issued seven cheques in discharge of a debt. One cheque presented for encashment was dishonoured for insufficient funds, provoking a complaint. The trial Court convicted the accused; on appeal four accused were acquitted. The revision petitioners challenge; the defacto complainant died during pendency and his heirs were substituted, with evidence consisting of PW1, PW2 and Exts.P1–P8. The learned judge notes the essential statutory framework for Section 138 NI Act: a deemed offence arising from a cheque dishonoured for insufficiency, contingent on the cheque being presented within the period of validity and a demand for payment following notice; non-payment after notice completes the offence. The court cites Narayana Menon v. State of Kerala in support, but ultimately upholds the appellate Court’s conclusions and, given the nature of the offence, accords leniency by modifying the sentence. The revision petition is disposed of accordingly: conviction affirmed and sentence altered to imprisonment till rising of the Court and payment of Rs 30,000 as compensation, with default imprisonment for three months. The court’s decision reflects a careful weighing of evidence, statutory framework, and the equities of the debtor–creditor relationship in NI Act prosecutions.

Provisions of Law Cited

Negotiable Instruments Act, 1881 - Section 138Negotiable Instruments Act, 1881 - Section 139Criminal Procedure Code, Section 255(1)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioners contended that all prior cheque-dishonour cases were settled and only this matter remained, with the 1st respondent presently abroad. They urged that, given the circumstances, the revision petition should be disposed of by modifying the sentence to one of imprisonment until the Court’s rising and payment of a reasonable compensation. They emphasized the difficulties in tracing the complainant and the possibility of leniency given the amount involved and the pendency of settlement in other matters.

Contentions of Respondents

The judgment does not provide a separate, explicit articulation of the respondents’ arguments in the revision; the record shows that the appellate Court convicted (subject to certain acquittals) and that the High Court found no illegality in the appellate order, ultimately upholding the conviction and altering the sentence in line with the statutory framework.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Narayana Menon v. State of Kerala	2006(3) KLT 404 (SC)	Mentioned Only	Cited in the context of discussing the NI Act presumption and related principles, but the judgment does not engage in a substantive analysis or overrule/distinguish it.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 10TH DAY OF AUGUST 2015/19TH SRAVANA, 1937** **Crl.Rev.Pet.No. 69 of 2007 (C)** **-------------------------------** **AGAINST THE JUDGMENT IN Crl.Appeal 526/2003 of ADDL.SESSIONS JUDGE, FAST TRACK COURT -II, ALAPPUZHA DATED 26-08-2006** **AGAINST THE JUDGMENT IN CC 514/2000 of J.M.F.C., RAMANKARI DATED 22.11.2003** **REVISION PETITIONER(S)/APPELLANTS/ACCUSED 1,2,3 AND 6:** - **--------------------------------------------------------** **1. VENAD KURIES, REGD. OFFICE DOOR NO.** - **872/X, HARI VILAS, THATHAMPALLY P.O.** - **ALAPPUZH, REP. BY ITS MANAGING PARTNER SANKAR.** **2. R.SANKAR, S/O. RUDRA DAS, MANAGING PARTNER, VENAD KURIES, SREEKUMAR BUILDINGS C.C.S.B. ROAD, ALAPPUZHA.** **3. K.RAMESAN, S/O. KUMARAN, MADATHIL HOUSE, THONDANKULANGARA, ALAPPUZHA.** **4. M.NAZIR, S/O. E.M.IBRAHIM, NISHI GARDENS, VELLAKKINAR, ALAPPUZHA.** **BY ADVS.SRI.S.SANAL KUMAR** **SMT.BHAVANA VELAYUDHAN** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT, ACCUSED 4 AND 5 & STATE: ---------------------------------------------------------** **1. M.Y.SAJITH, CHAPRAYIL HOUSE, CANAL WARD, ALAPPUZHA.** **2. M.AYYAPPAN NAIR, S/O. KUTTAPPAN NAIR, SOUTH WARRIAM, THONDANKULANGARA, ALAPPUZHA.** **3. T.V.REJI, S/O. VIDHYANANDAN, ANANDA BHAVANAM, POWER HOUSE WARD, ALAPPUZHA.** **4. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R, BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE. R,R.2,3 BY ADV. SRI.K.MOHAN R,R.2,3 BY ADV. SRI.S.SOMAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-08-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.69 of 2007 ---------------------------------------------Dated this the 10[th] day of August, 2015 ## **ORDER** The revision petitioners challenge the judgment in Crl.Appeal No.526/2003 of Additional Sessions Judge, Fast Track Court-II, Alappuzha. The revision petitioners were accused in C.C.No.514/2000 of Judicial First Class Magistrate Court, Ramankary, which was filed for offence punishable u/s.138 of the Negotiable Instruments Act. They were convicted by the trial Court and sentenced thereunder. Against that, they preferred the above Crl. Appeal, in which 4[th] and 5[th] accused were acquitted u/s.255(1) Cr.P.C. Against that judgment, accused 1 to 3 and 6 preferred this revision petition. Crl. R.P. No.69/2005 2 2. The brief facts given rise to the indictment were that, the 1[st] petitioner is a partnership firm and 2[nd] petitioner is the Managing Partner and other two petitioners are partners of the firm, which is engaged in the business of Chitty and finance transactions. The 1[st] petitioner is liable to pay a sum of 1,50,000/- to the 1₹ st respondent and in discharge of that debt, they issued 7 cheques to the 1[st] respondent on 7.7.1998 drawn on State Bank of India, Mullackal Branch. On 5.10.1998, when it was presented for encashment for ₹30,000/-, it was dishonoured for the reason 'insufficient funds'. Even though the 1[st] respondent sent a demand notice, there was no repayment. In the circumstances, the above case was filed. 3. During the pendency of the case, the defacto complainant died and his legal heirs were impleaded. They Crl. R.P. No.69/2005 3 examined PW1 and PW2 and produced Exts.P1 to P8 in support of their contention. The incriminating circumstances brought out in evidence were denied by the revision petitioners while questioning them u/s.313 Cr.P.C. They examined DW1 and DW2 and produced Exts.D1 to D7. The trial Court after analysing the evidence convicted the accused. 4. The learned counsel for the revision petitioners contended that all other cases pertaining to dishonour of cheque were settled by the revision petitioners and this is the only case pending after settlement. Earnest effort made by the revision petitioners to trace out the 1[st] respondent is in vain, since he is now in abroad. In the circumstances, the learned counsel for the revision petitioners submitted that this revision petition may be disposed of by modifying the sentence. 4 Crl. R.P. No.69/2005 5. According to Section 138 of the Negotiable Instruments Act, where any cheque drawn by a person on an account maintained by him with a bank for payment of any amount of money to another person from out of that account, for the discharge in whole or in part of any debt or liability, is returned by the bank, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with a bank, such person shall be deemed to have committed an offence under Section 138 of the Negotiable Instruments Act. This deemed provision is subject to the statutory condition that the cheque has to be presented within the statutory period in which it is drawn or within the period of its validity. Secondly, the payee or holder in due course of the cheque makes a Crl. R.P. No.69/2005 5 demand for payment of such amount by giving a notice in writing to the drawer of the cheque and non-payment of due amount after receipt of notice by the drawer of the cheque. 6. In this case, after the death of the defacto complainant, PW1, the brother of the complainant was examined in the trial Court. He deposed about the transaction. He also examined PW2. Ext.P1 was dishonoured for the reason of 'funds insufficient. Ext.P2 is the dishonour memo. Ext.P3 is the notice sent by the complainant to the accused. Ext.P4 is the postal receipt. Ext.P5 is the acknowledgment card. He also produced Exts.P6 and P7 account particulars and account opening form. PW2 deposed that, when Ext.P1 was presented for encashment, there was no sufficient fund to honour Ext.P1. The appellate Court drawn a presumption u/s.139 of the Crl. R.P. No.69/2005 6 ## N.I. Act. Relied the decision in **Narayana Menon** v. **State of Kerala** [2006(3) KLT 404 (SC)]. 7. The revision petitioners examined DW1 and DW2 in the trial Court to rebut the presumption u/s.139 of the N.I. Act. Even though DW1 and DW2 were examined and the documents Exts.D1 to D7 were produced by them, the trial Court was of the opinion that those evidence are not sufficient to absolve the liability of the revision petitioners. In the circumstances, the revision petitioners and other accused were convicted. But, after considering the matter, A4 and A5 were acquitted by the appellate Court. I do not find any illegality in the order passed by the appellate Court. Therefore, the conviction passed by the appellate Court is confirmed. But, considering the nature of offence, sentence is modified as follows: 1) The revision petitioners are sentenced to Crl. R.P. No.69/2005 7 undergo imprisonment till rising of the Court and to pay compensation of 30,000/-, in default of payment of₹ compensation, simple imprisonment for three months. The Criminal Revision Petition is disposed of as above. **P.D. RAJAN, JUDGE.** acd Crl. R.P. No.69/2005 8